Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

On November 5, I posted here about Florida v. Jardines, in which the U.S. Supreme Court would decide this question: when a police officer takes a dog trained to sniff for drugs onto the porch of a home to sniff the air coming from under the door of a house, does this action constitute a search under the Fourth Amendment? If the answer was yes, this would mean that police would need a warrant from a court before bringing the dog up to the door. In past cases, the Court had given police considerable leeway to use dogs; no warrant had been required before having the dog sniff a piece of personal luggage (the Placecase is here) or a package addressed to someone (the Jacobsen case is here).

The Court has now issued its opinion in Jardines: bringing a drug-sniffing dog up to a home is a Fourth Amendment search, and requires a warrant. The author of the opinion was Justice Antonin Scalia, which may surprise those who think of Scalia as the author of the Court’s most conservative cases. But it should not shock anyone. The case follows the pattern of one of Scalia’s opinions from 2001: Kyllo v. U.S. In Kyllo, the police used a thermal imager on a home; the device detects patterns of heat, and the police used it to see considerable excess heat coming from the defendant’s home, which indicated the presence of a marijuana growing operation inside. According to Scalia, this required a warrant because the target was a home, which is where people conduct their most intimate activities. The imager, used from outside, was designed to detect activity inside. Any method of “seeing” inside the home, Scalia said, requires the judicial oversight of a warrant obtained prior to the search.

Scalia used some of the same reasoning in Jardines. Yes, the dog was outside the home. And it is true that many non-family members have implicit permission to come onto the porch of the home, right up to the door: letter and package carriers, delivery people, and even police officers wanting to talk to the homeowner. But the dog is there specifically to detect activity inside the home, and that is more like the thermal imager than someone delivering mail. Folding this reasoning around the Court’s rediscovered interest in the law of trespass, Scalia said the presence of the dog is an intrusion that the Fourth Amendment doesn’t permit without a warrant.

Jardines does not put dog sniffs of homes off limits to police. Rather, police must first demonstrate to a judge that they have probably cause to believe that there is criminal activity the dog could detect inside the house. Probable cause is one of the lower legal standard in the law; it does not require anything close to proof beyond a reasonable doubt.

Last week, the U.S. Supreme Court held arguments on cases involving police use of dog detection dogs, and the ability of citizens to sue when they think their conversations have been monitored under the Foreign Intelligence Surveillance Act. These are important matters, with important long-term implications for the privacy of all Americans.

I had the chance to discuss these cases on Pittsburgh Public Radio’s Essential Pittsburgh talk show. To hear the complete audio file, click here.

In the dog sniff case of Florida v. Jardines, the Court looked at the basic question of whether police could walk a drug-sniffing dog up to a person’s front door to search (that is, sniff) for narcotics inside without a warrant or probable cause. It’s an interesting question: the Court has allowed police to use dogs this way in past cases on objects like luggage and vehicles, but they have also said in other cases that the home is different and deserves more protection. In the week’s other dog sniff case, Florida v. Harris, the Court debated the accuracy of the dogs; it turns out, contrary to what most people think, they are not perfect.

In the FISA case, the Congress passed a statute that validated former President George W. Bush’s warrantless wiretapping system. This law allowed the government to listen in on communications of Americans in some limited circumstances without a warrant. A number of journalists, lawyers for terrorism suspects, and human rights organizations sued, alleging that their communications were almost certainly tapped under the law. But they could not know for sure, because the government keeps these taps secret and had refused to confirm or deny that any of the plaintiffs had had their communications intercepted. The government therefore argues that the plaintiffs can’t prove they’ve been harmed. It’s a classic Catch-22.